Everette v. DO BRIGGS LUMBER COMPANY , 250 N.C. 688 ( 1959 )

110 S.E.2d 288 (1959) 250 N.C. 688

Woodrow EVERETTE t/a Woodrow Everette Truck Line
v.
D. O. BRIGGS LUMBER COMPANY, Inc.

No. 25.

Supreme Court of North Carolina.

September 23, 1959.

Wilkinson & Ward, Washington, for defendant, appellant.

No counsel contra.

MOORE, Justice.

The parties waived trial by jury and agreed that the judge find the facts, make his conclusions of law and enter judgment. G.S. § 1-184 and G.S. § 1-185. If the findings of fact by the trial judge are supported by competent evidence, such findings are as binding as a verdict of the jury and are conclusive on appeal. State Planters Bank v. Courtesy Motors, Inc., 250 N.C. 466, 475, 109 S.E.2d 189; State ex rel. North Carolina Milk Commission v. Galloway, 249 N.C. 658, 663, 107 S.E.2d 631.

Appellant contends that the telephone conversations admitted in evidence in this case, over his objection, are incompetent. If these telephone conversations are incompetent, it must be conceded that plaintiff's evidence is insufficient to support the findings of fact and there is error.

Telephones are important and necessary mediums of intercommunication in modern business. Courts of justice recognize the importance of telephone transactions in commerce. Subject to reasonable rules and restrictions, telephone conversations are competent and admissible in evidence in our courts. The admissibility of telephone conversations is governed by the same rules of evidence which govern the admission of oral statements made in face to face conversations, except that the party against whom the conversation is sought to be used must be identified; but the identity of the party may be established either by direct or circumstantial evidence. Sanders v. Griffin, 191 N.C. 447, 450-451, 132 S.E. 157. The antiphonal party may be identified by his voice if the other party to the conversation is acquainted with and recognizes the speaker's voice. A. T. Griffin Manufacturing Company v. Bray, 193 N.C. 350, 351, 137 S.E. 151; State v. Hicks, 233 N.C. 511, 518, 64 S.E.2d 871.

"* * * (T)elephone calls purporting to have been made by a person are never admissible against him without some proof identifying him as the caller." 20 Am.Jur., Evidence, Sec. 366, p. 335. "* * * (W)here the witness answers a telephone call and there is no evidence to authenticate the antiphonal speaker except that he states his name, the evidence is inadmissible as hearsay." 11 N.C. Law Review, 344; Powers v. Commercial Service Company, 202 N.C. 13, 161 S.E. 689; A. T. Griffin Manufacturing Company v. Bray, supra. However, the identity of the person making such call may be shown by facts and circumstances arising after the call is made. "* * * (I)t is not necessary that the witness be able, at the time of hearing the telephone conversation, to identify the person with whom the conversation was had; it is sufficient if the knowledge which enabled him to make the identification was obtained afterward. Nor is it necessary in all instances that the proof of the identification be made before the introduction of the evidence of the conversation; such conversation may, in the discretion of the court, be admitted subject to identification." 20 Am. Jur., Evidence, Sec. 366, p. 334. "* * * (A)uthorities are uniform in holding that the order in which proof may be presented is within the discretion of the court." State v. Strickland, 229 N.C. 201, 209, 49 S.E.2d 469, 474.

"According to the weight of authority, evidence is admissible as to a conversation over the telephone where the witness called for a designated person or firm at his or its place of business and the person answering the call claims to be the person called for, * * * and the conversation carried on is one regarding the business transacted by such person or firm." 20 Am.Jur., Evidence, Sec. 367, p. 335. Cf. State v. Burleson, 198 N.C. 61, 150 S.E. 628. "Where * * * the witness testifies that he made a call for a designated individual and was informed that the person called for was not in his office at the time, a later call purporting to come from such person has been held admissible." 20 Am.Jur., Evidence, Sec. 366, p. 335; 11 N.C. Law Review, 345; International Harvester Company of America v. Caldwell, 198 N.C. 751, 153 S.E. 325.

When we apply the foregoing principles to the facts of the instant case it is abundantly clear that the telephone conversations admitted in evidence are competent and admissible. Here we are dealing with a series of calls. The five calls received by Everette, if considered alone in disregard of the other evidence in the case, are inadmissible. The two calls made by Everette, if considered alone, are competent. It will be observed that Everette placed calls for D. O. Briggs at the D. O. Briggs Lumber Company in Dillon. In one instance a person purporting to be D. O. Briggs answered. In the other instance Briggs was out of his office at the time but called back later in the day. D. O. Briggs, in testifying for the defendant, stated that he received one call from Everette and that they had a conversation in which he told Everette that B & B Company owed him (Everette) for the freight. This corroborates Everette as to one of the calls and identifies D. O. Briggs. Everette testified that the voice was definitely the same in all the telephone conversations. This evidence tends to identify the antiphonal party (D. O. Briggs) in all the telephone conversations. The weight of the evidence was for the trier of the facts —the trial judge in this case.

The appellant contends further that the trial judge committed prejudicial error in the course of the trial in that the judge propounded to witnesses leading questions "pertaining to the very heart of this controversy," indicating that he entertained an opinion favorable to plaintiff's cause and thereby constituting himself plaintiff's advocate. Defendant cites no authority in support of its position.

G.S. § 1-180 was originally enacted in 1796. There has been little change through the years. The title of the original act was: "An act to secure the impartiality of trial by jury, and to direct the conduct of judges in charges to the petit jury." It provides that no judge in giving a charge shall give an opinion whether a fact is fully or sufficiently proven. It has been construed to include any opinion or even an intimation of the judge at any time during the trial, calculated to prejudice either of the parties with the jury. It is "a departure from the common law rule and from the practice which prevails in the English courts, the federal courts, and in the courts of some of the states." It is to be strictly construed, and the sole purpose of this portion of the act is to prevent judges from invading the province of the jury. McIntosh: North Carolina Practice and Procedure, 2d Ed., Vol. 2, Sec. 1514, pp. 49, 50.

Obviously the law defendant seeks to invoke has no application to the case at bar. The parties waived trial by jury. "The effect of the submission to the judge is to invest him with the dual capacity of judge and juror. He is to hear the evidence and pass upon its competency and admissibility as judge, and determine its weight and sufficiency as juror. The rules as to the admission and exclusion of evidence are not so strictly enforced as in a jury trial * * *." McIntosh: North Carolina Practice and Procedure, 2d Ed., Vol. 1, Sec. 1373, p. 759; Bizzell v. Bizzell, 247 N.C. 590, 604, 101 S.E.2d 668.

The record discloses that the trial judge did ask many leading questions at crucial points in the trial. A reading of the entire record leaves the definite impression that the questions were for the purpose of clarification and to ascertain the truth. Under the circumstances of this case it was not only the judge's privilege but his duty. The record discloses that both parties were given full opportunity to present their evidence and contentions, and that the hearing was openly, fairly and fully held. We find no error in the conduct of the trial by the learned judge.

Finally, appellant contends that if "there is sufficient evidence to support the trial court's finding of fact that a contract was entered into between plaintiff and D. O. Briggs, * * * such contract was ultra vires as to defendant corporation and that same was only of benefit to one of its stockholders, D. O. Briggs."

For solution of the question posed by the foregoing argument we need refer only to G.S. § 55-18, which is a part of the "Business Corporation Act" of 1955 which became effective 1 July, 1957. The pertinent portion of the Act is as follows:

"§ 55-18. Defense of ultra vires. —(a) No act of a corporation * * * shall be invalid by reason of the fact that the corporation was without capacity or power to do such act * * * but such lack of capacity or power may be asserted:

"(1) In an action by a shareholder against the corporation * * *.

"(2) In an action by the corporation or by its receiver, trustee or other legal representative, or by its shareholders in a derivative suit, against the incumbent or former officers or directors of the corporation.

"(3) In an action by the Attorney General, as provided in this chapter * * *.

"(b) This section applies to acts * * * done * * * by a foreign corporation in this State * * *."

In view of the foregoing, it is unnecessary to call attention to the fact that D. O. Briggs owned 90% of the capital stock of the D. O. Briggs Corporation and that said corporation received benefits from the transactions with plaintiff.

In this action the findings of fact support the conclusions of law and the judgment based thereon. State Planters Bank v. Courtesy Motors, supra. The judgment below is

Affirmed.

HIGGINS, J., not sitting.